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Eighth Circuit: Incontrovertible Proof Must Underlie Video Game Restriction

By Eric L. Lipman

In an interesting opinion issued today, a unanimous panel of the United States Court of Appeals for the Eighth Circuit upheld a lower court?s entry of an injunction barring the enforcement of Minnesota?s Restricted Video Games Act. Under the Act, a person under the age of 17 may not knowingly rent or purchase a video game that has been rated either ?AO? (Adults Only) or ?M? (Mature) by the Entertainment Software Rating Board. The Entertainment Software Rating Board is a non-profit, self-regulatory body established by the Entertainment Software Association to rate computer and video game content.

As the panel reasoned, because violent video games are a protected form of expression, Minnesota?s regulation of access to these games was subject to strict scrutiny. As Circuit Judge Roger L. Wollman summarized:

We have held that violent video games are protected free speech. Interactive Digital Software Ass?n v. St. Louis County, 329 F.3d 954, 958 (8th Cir. 2003) (hereinafter Interactive Digital), a holding that the State recognizes is binding upon us, but one which it hopes might be overturned in an en banc review of this case. In light of Interactive Digital, any restriction on the purchase or rental by minors of violent video games is subject to strict scrutiny analysis. We will find the Act constitutional, then, only if it is ?necessary to serve a compelling state interest and . . . is narrowly tailored to achieve that end.?
....

Whatever our intuitive (dare we say commonsense) feelings regarding the effect that the extreme violence portrayed in the above-described video games may well have upon the psychological well-being of minors, Interactive Video requires us to hold that, having failed to come forth with incontrovertible proof of a causal relationship between the exposure to such violence and subsequent psychological dysfunction, the State has not satisfied its evidentiary burden. The requirement of such a high level of proof may reflect a refined estrangement from reality, but apply it we must.

The pane?s complete analysis ? including literary allusions to the Bible?s Jael and Shakespeare?s Macbeth ? is accessible here.

Full post as published by Within the Scope on March 17, 2008 (boomark / email).